The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-12-03
Supreme Court Decisions.


1906 Peter W. Castetter We. State rel
Leona j. Brad burue Hamilton. G. c. Reversed.
Mitchell. &. J.-Suit by the relatrix, ward.
against the estate of deceased surety the
guardians bond. Answer that in 1882 appellants
decedent as surety on the bond of the deceased
guardian. whose estate was lpsolvent, with the
knowledge and request Of the relatrix. she being
then over twepty-one years of age, made
and filed in the Hamilton Circuit Court final
report and settlement of the proceedings in
the guardianship matter, which report was sub
sequently approved and confirmed by the court
and that the guardianship was then fully and
finally settled, and that appellants decedent
ns the order
Judgment remained IN full force The relatrix
being the ward whose guardianship was pending
must be deemed to have been a party to the
proceeding and to the adjudication pleaded in
the answer, and in the absence of an affirmative
showing to the contrary it will be presumed that
the court took all the requisite steps to acquire
jurisdiction over her person before rendering
Judgment. The answer set up facts from which
it appeared that the liability of appellants de-
cedent had been once determined by a court of
competent jurisdiction. Without setting that
judgment aside his estate can not be again vexed
by suit the bond Where in such case
special defense under the statute pleaded
which was sufficient, an error In sustaining de-
murrer thereto is not rendered harmless because
the defense might have been proved without
special plea.
Madison c. c. Affirmed. Nlblack, J.-tL) The
only practical difference between an executor
and an administrator with the will annexed con-
ssts in the mode of their respective appoint
mentS, the first being named by the testator aud
the latter by the court CD An administrator
with the will annexed has the implied power to
sell real estate directed in the will to be sold,
and to invest and control the proceeds for the
benefit of the widow. He has the power to sell
and convey it without order of court either
authorizing or requiring him to do so, when the
will directs such real estate be sold pay debts.
1921. Stephen j. Dooley vs. the Town of Sui
livan Sullivan c. G. Affirmed. Elliott, J.-(1.) It
is sufficient to show that proper signals secure
guards were placed about an excavation on quit
ting work, and neither the municipal corporation
nor It's contractor ia liable if a wrong-doer
moves the signals during the night e When
the owner of lot abutting on the street ade
an excavation in the sidewalk for the purpose of
i'm proving it, under ordinance of the town.
his acts cannot be deemed the acts of the town
in such sense as to charge the town with his
negligence; and in order to charge the corpora
ton, evidence of the negligence of the property
owner must be supplemented by evidence that
the town authorities were negligent, that the
work directed to be done was intrinslcaliy dan
gerous.
1882. VIM. J.. May, executor, VS.. Abel
Hoover, ct al bartholomew G. c.. Reversed
collars J.-(l) Constituting the sections of the
code of 1881 together the Legislature did not
intend that either party should have the right
of peremptory challenge in the case of a struck
jury. Over objection by appellant appellee
permitted TO persmpsory challenge The fact
that then appellant made peremptory
challenges does not now estop him from COM
of the error below. (2.t Where a con-
tract contains a special warranty that the ma.
chine would 10 good work and give general sat I
in order give the purchaser the
right to return the machine. it should appear
that the machine was defective and would not
do good work.
129OS State ex REL Walker vs. Nellie E. Green.
Benton G. c. Affirmed. Howk 1.-THE statute
acts 1885, page 1877. regulating the practice of
medicine ard providing for the issuing of a IL
cense upon affidavit stating that the applicant
has resided and practiced medicine in this State
for ten years preceding the taking
effect of this act aforesaid. is not within the
constitutional prohibition that State shall
abridge the privileges of citizens of the United
Statea( Section 2 Art and Section l. Art. IA fed
eral Constitution ~ An Information in the
name of the State by prosecuting attorney to
vacate license granted to a physician to prac-
tice me dicine the ground OF false affidavite
will not lie.
1864. VIM. L. Davidson ct al Joseph
Coon e. al. Hancock c. C. Dismissed.
1925. Laura Gale ct al. VS.. Andrew T. Corey.
Marion S. C. Rshearing denied